Waters v. Griffith

Mason, J., delivered the opinion of the court. The present appeal will be settled by the construction which we place upon the covenant which constitutes the basis of this action. It is in these words, viz: ■“Memorandum of agreement between Col. Lyde Griffith and Washington Waters, witnesseth: That the said Griffith agrees and obliges himself to let Washington Waters have the privilege to dig for, get and remove chrome ore or mineral from his land, formerly occupied by Benjamin King, it being understood by the parties, that the said Griffith shall not stop the said Waters from mining, or in any way interfere with his operations, so long as he may continue to follow the vein of chrome he may commence with, or continue to dig in the part of land marked out for him.

Also, that the said Waters shall pay unto the said Griffith the sum of five dollars for each and every ton of ore he may obtain and remove from said land. In witness whereof we have hereunto set our ³³³ hands and seals, this ISth day of October, eighteen hundred and thirty-seven: Lyde Griffith, (Seal.) Washington Waters, (Seal.) Witness:—Walter Griffith.” We gather from the terms of this agreement the intention •of the parties to be, that before the defendant could be charged for the chrome ore, which he designed to purchase, it must not only be excavated fiom the earth, but actually removed from the premises of the plaintiff. Whatever ambiguity may be supposed to exist as to the terms first employed, namely: “dig for, get and remove chrome ore,” &c., that ambiguity is destroyed by the subsequent language in the agreement, •which provides, that the defendant shall pay five dollars for each and every ton of ore “he may obtain and remove from said land.” We must give, if we can, some distinct meaning to every word employed in the contract, and believing that the word “o&iam” is broad enough to embrace all the ore that may have been excavated and thrown out upon the surface, without the aid of the words “removed from said landf we must therefore assign to the latter terms some other office or meaning. This we have no difficulty in doing, and do declare, that the plain import of the language is, that the ore